CONFIDENTIAL DISCLOSURE OF ARTICLE FOR EVALUATION This Agreement is made as of April 18, 2008 by MNM Crop, an Ohio Corporation having its principal place of business at 1245 Seventh Avenue, AnyCity, Ohio 44444 (the "Discloser"), and ABC Corp, an Ohio Corporation having its principal place of business at 6789 Tenth Circle, AnyCity, Ohio 44444, as represented by its Advanced Systems Division (the "Disclosee"). Recitals A. The Discloser has developed certain articles reinforced with ______________________ (the "Articles"). B. The Disclosee desires to evaluate samples of the Articles in order to review the applicability thereof as a structural material for possible use in current and future Disclosee's products. C. The Discloser is willing to provide the Disclosee samples of the Articles solely for such evaluation purposes, together with certain of the Discloser's proprietary and confidential information relating to such Articles which the Discloser considers useful for such evaluation, upon the terms and conditions set forth in this Agreement. Terms of Agreement Section 1. For purposes of this Agreement: 1.1 "Proprietary Information" of the Discloser shall mean: (a) any samples of the Articles to be provided by the Discloser to the Disclosee under this Agreement; (b) any economic, scientific and technical data, information and ideas relating to the Articles, or the fabrication or uses of the Articles, which may be disclosed or supplied by the Discloser to the Disclosee under this Agreement, whether or not the same shall have been or later be patented or shall, either independently or in combination, constitute bases of patentable inventions, or any matters as to which the Discloser is required by law or contract to maintain as confidential, provided the Discloser considers such data, information, ideas or confidential matters to be proprietary and so indicates to the Disclosee in the manner specified in section 1.3; and (c) the results shown in the evaluation report to be provided by the Disclosee to the Discloser under section 3. The Disclosee shall, on the Discloser's behalf, affix to any of the Proprietary Information of the Discloser described in this subsection (c), such notice or legend as is required under section 1.3, and as shall be prescribed by the Discloser. 1.2 "Proprietary Information" of the Disclosee shall mean any economic, scientific and
technical ideas and information relating to testing methods, techniques or standards applicable to evaluating products such as the Articles for use as a structural material, or products manufactured or processes used by the Disclosee in its business, or any matters as to which the Disclosee is required by law or contract to maintain as confidential, which may be disclosed or supplied by the Disclosee to the Discloser under this Agreement, to the extent the Disclosee considers such data, ideas, information or confidential matters to be proprietary and so indicates to the Discloser in the manner specified in section 1.3. 1.3 In order to obtain the protection of this Agreement with respect to Proprietary Information of the type described in section 1.1(b) or section 1.2, (a) if the Proprietary Information is in written form when disclosed, the disclosing party must indicate the proprietary nature of such information by an appropriate legend, marking, stamp or other positive identification on the writing delivered to the other party, and (b) if the Proprietary Information is disclosed orally or visually, the disclosing party must within 10 days after disclosure deliver to the other party a writing containing an adequate description of the oral or visual information which shall indicate the proprietary nature of such information by an appropriate legend, marking, stamp or other positive identification. 1.4 If a document containing any Proprietary Information of a party is reproduced in whole or in part by the other party, the reproduction shall carry a proprietary notice or legend similar to that which appears on the original. Section 2. Subject to Sections 5 and 6, the Disclosee shall use the Proprietary Information of the Discloser solely for the purpose of evaluating, at the Disclosee's expense, the applicability of the Articles as a structural material for possible use in current and future automotive products of the Disclosee; and, without limiting the generality of the foregoing the Disclosee shall not reverse engineer the samples or submit the samples to any testing or analysis not related to its evaluation of the functional performance of the samples as provided in this Agreement. Section 3. Within 2 months after the receipt of the samples, the Disclosee shall furnish the Discloser with a written report on the results of its evaluation. The report shall be limited in scope to whether or not the Disclosee's evaluation indicates that the samples provided met the Discloser's prescribed material properties. The Disclosee shall be under no obligation to provide any information or results for which an Export Control Act license is required unless and until such license is first obtained. The Discloser shall not reveal any of the contents of the report provided by the Disclosee under section 3, and shall not identify the Disclosee in connection therewith, to any person or entity (public or private) who is not an employee of the Discloser having a need to know such information for the purposes set forth in this Agreement, without first getting the written consent of the Disclosee, unless otherwise compelled by law to do so (in which case, the Discloser agrees to give prompt notice to the Disclosee).
Section 4. If the Disclosee requests that the Discloser supply further quantities of samples in addition to the samples first supplied to the Disclosee hereunder in order to continue its evaluation, both shall discuss such request and, if agreed, the Discloser shall supply them upon mutually agreed terms. Section 5. For a period of 6 months after disclosure, each party shall keep in confidence, and shall not disclose any of the other party's Proprietary Information to any person or persons outside of their respective companies, and no Proprietary Information of a party which is held by the other party pursuant to this Agreement shall be used, duplicated or disclosed by the other party for purposes other than those set forth in this Agreement. Provided, however, that the foregoing restrictions shall not apply to any information designated as Proprietary Information which: (a) was generally known to the public or to the relevant industry at the time of disclosure, or thereafter becomes generally known to the public or to the relevant industry through no fault of the receiving party; or (b) was known to the other party at the time of disclosure; or (c) is used or disclosed with the prior written approval of the party to whom such Proprietary Information belongs; or (d) is used or disclosed by the receiving party despite the exercise of reasonable care to avoid such use or disclosure; or (e) becomes lawfully known to the receiving party without similar restrictions from a source other than the disclosing party. If a party discloses to a third party any Proprietary Information belonging to the other party which falls in any of the exceptions (a) through (e) above, or for which the confidential obligations hereunder have expired, such party shall not identify the other party as the source of such information. Section 6. 6.1 Subject to section 5.1, the Proprietary Information of a party shall be disclosed by the other party only to its directors, officers and employees who need to receive it in order to achieve the purposes set forth herein [provided, however, that the Disclosee may incorporate Proprietary Information provided to it herein in proposals or reports to the U.S. Government, subject to protecting the proprietary nature of the information in accordance with the U.S. Government Federal Acquisition Regulation ("FAR") 52.215?12 or Department of Defense FAR Supplement ("DFARs") 52.227-7013].
6.2 The Disclosee shall not assign, transfer, lease, lend nor otherwise yield possession of or grant access to any of the samples received from the Discloser hereunder to any third party or parties, or to any directors, officers and employees of the Disclosee who do not need to receive such samples in order for the Disclose to perform its evaluation thereof. Section 7. No license, whether under any patent or patent application or otherwise, is granted to either party either directly or indirectly by this Agreement, nor does either party grant any rights of ownership or other rights in that party's Proprietary Information to the other party by this Agreement except for its use of such Proprietary Information as provided in section 2. Section 8. Nothing in the Agreement shall grant to either party the right to make commitments of any kind to any third party, for or on behalf of the other party. Section 9. This Agreement is not intended to be, nor shall it be considered as, a "tea m" arrangement, joint venture, partnership, or other formal business organization, and unless otherwise agreed in writing, neither party shall have the right or obligation to share any of the profits or bear any of the risks or losses of the other party. At all times, the Disclosee and the Discloser shall remain independent contractors. Each party assumes no responsibility to the other for costs, expenses, risks and liabilities associated with the research, development, exchange and use of each other's Proprietary Information. Section 10. Neither party shall rely in any way on the accuracy or completeness of any results, reports or Proprietary Information provided to it by the other party pursuant to this Agreement; and, any use thereof by the receiving party shall be at the receiving party's sole risk and expense. Further, each party hereby concurs that all such results, reports and Proprietary Information are to be provided without any warranty or guaranty of any nature (express or implied) and waives all implied warranties (including, but not limited to, any warranty of merchantability and any warranty of fitness for a particular purpose) relating thereto; and relieves and excludes the other party from any and all liability to it for loss, damage and injury (including, but not limited to, consequential damages and any and all loss, damage and injury to third parties) resulting from or relating to the performance of the other party under this Agreement. Section 11. Each party shall be excused for any failure or delay in supplying the other party with the samples or reports hereunder which is caused by or results from any laws, proclamations, ordinances or regulations of either the U.S. Government or the ______________________ Government. Section 12. No rights or obligations other than those expressly recited herein are to be inferred from this Agreement, including without limitation, any requirement that a party contract with the other party for the procurement or sale of any products, services or data.
Section 13. Each person of the receiving party's organization who has had or is granted access to the other party's Proprietary Information shall be informed of the obligation to protect the Proprietary Information of such other party from unauthorized use or disclosure as herein provided. Each party shall require each person to whom such party has granted access to the other party's Proprietary Information to execute an undertaking in duplicate originals, each in the form of Exhibit A which is attached, prior to being given access to such Proprietary Information. The party who causes an undertaking to be executed shall deliver one executed original of such undertaking to the other party upon request by said other party. Section 14. Soon after the Disclosee's evaluation of the samples of the Articles is completed, but in no case later than 6 months after the date of Disclosee's receipt of the samples of the Articles, unless otherwise agreed to in writing by the parties, all samples of the Articles and all documents containing Proprietary Information of the Discloser that are in the possession of the Disclosee pursuant to this Agreement, except for copies of the reports described in section 3, shall be either returned or destroyed as directed by the Discloser in writing, and the Disclosee shall provide to the Discloser written certification of the return or destruction of all such Proprietary Information of the Discloser. The report described in section 3 may be held by the Disclosee in confidence for the Discloser subject to the limitations set forth in section 5. Section 15. Each party shall designate personnel for disclosure and receipt of any Proprietary Information hereunder, and all such Proprietary Information shall be addressed to such designated personnel when delivered to the other party. The following personnel are initially designated for disclosure and/or reception of Proprietary Information under this Agreement:
James R Yuppie Corporate Hotshot Title Julia P Preppygirl Corporate Bigwig Title
Discloser
Disclosee
Section 16. This Agreements supersedes all prior understandings and communications between the parties on the subject matter of this Agreement and may not be changed or modified in any manner except by instruments signed by duly-authorized officers or representatives of each party.
Section 17. This Agreement has been entered into in the State of Ohio, U.S.A., and shall be governed by and interpreted under the laws of that state without giving effect to its conflict of laws principles. Further, the parties agree that any dispute relating to this Agreement shall be resolved by a court of competent jurisdiction in the State of Ohio, if the parties are unable within a reasonable time to first resolve it by mutual agreement. Section 18. Any and all notices, consents, demands or other communications required or permitted to be given by a party to the other party under this Agreement shall be in writing, either delivered by hand or sent by facsimile (at the below listed numbers) to the other party (with a copy to be simultaneously mailed by airmail) at the other party's address set forth in the preamble to this Agreement: If to the Disclosee: Attn: Julia P Preppygirl
Facsimile: _________________ If to the Discloser: Attn: James R Yuppie
Facsimile: _________________ Any change in a party's address or facsimile transmission number for the purpose of notice under this section 18, and any change in the name of the person to whose attention notices are to be sent, shall be communicated to the other party in the manner set forth above in this section 18, but shall only be effective upon actual receipt.
Execution This Agreement has been duly executed for the parties as of the date first above written by their duly authorized respective representatives whereupon it enters into full force and effect in accordance with its terms.
MNM CROP
ABC CORP Advanced Systems Division
By Name James R Yuppie Title Corporate Hotshot
By Name Title Julia P Preppygirl Corporate Bigwig
Exhibit A
Undertaking I have read and understand the Agreement between MNM Crop and ABC Corp (the "Agreement") pursuant to which I will be given access to certain Proprietary Information of ______________________, and I agree to comply with and be bound by the terms of the Agreement limiting disclosure and use of such Proprietary Information.
Helga E Hooolahann
(Signature) 5544 Anystreet AnyCity, Ohio 44444 (Address) Corporate Hotlips BiggeeWiggee (Title)